IMPACT OF NEW EU/UK RELATIONSHIP ON REAL ESTATE
Now that a deal has been struck and the UK and the EU are turning their attention to the transition process, it is natural that people will begin to question how this new relationship will affect real estate businesses and investment. The fact that uncertainty around Brexit has not affected the EU in the way it has the UK, and the rollout of COVID-19 vaccination programmes, has caused renewed confidence in the European market.
During the next 12 months, we can expect to see a lot of European capital deployed in the London market. In fact, in the recent CBRE Investor Intentions Survey 2021, in which over 400 Europe-based investors participated, London was voted the most preferred city for investment. This highlights its continued appeal and standing within the real estate investment community now that the Brexit agreement has been agreed. Berlin, Frankfurt, Paris and Amsterdam were also voted in to make up the top five, clearly signalling positive investor sentiment towards some key European cities.
Having avoided the prospect of a no-deal Brexit, the fundamentals of both the European and UK real estate markets should both continue to be attractive investment destinations for investors based within Europe and internationally. Because legislation regarding real estate is generally domestic in nature, Brexit has had relatively minor impact on UK land law. This is also true for the following EU real estate fields that would not be impacted by the significant and structural change of Brexit : all legal formalities and requirements relating to land ownership, land registry, leases, the conveyancing process, securities over land and land taxes, which are largely unscathed by Brexit. This is largely governed by each domestic law.
Brexit should not trigger consequences upon the substance of existing contractual obligations and any contracts entered into by parties submitted to UK law, will remain in full force and effect unless specific termination rights exist.
Any relevant EU law in force at the end of 2020 was adopted, alongside any required amendments, into UK law as part of the European Union (Withdrawal) Act 2018.
INFLUENCE OF EU LAW
The decision to import EU law into UK law allows for continuity in both the legal and regulatory culture of the UK. As previously stated, this means that there are relatively few short-term changes to real estate issues, for example, business rates state aid and Environmental Impact Assessments. This has created a sense of continuity that should be lasting. In the long term, however, it is likely that UK law will eventually diverge from that of the EU, which could introduce unforeseen tensions and costs. Alternatively, it could also be viewed that UK sovereignty will provide the chance to radically overhaul legislation, but it remains to be seen whether and how this transpires.
KEY CONSIDERATIONS FOR REAL ESTATE BUSINESSES
Despite Brexit and the pandemic, the global search for yield will endure, investors will be looking to access the real estate sector and all major European markets are set to benefit. However, companies involved in real estate are advised to consider the wider commercial and market related ramifications of the Brexit transition on their business. These considerations tend to relate to the delivery of construction projects and the potential impacts on their supply chains.
Many UK-based financial firms have already opened subsidiaries in the EU to keep unfettered market access known as “passporting” and to make sure they can keep trading in France. The “swift” flow across the Channel includes both (i) French groups moving assets home from British branches and (ii) moves by UK-based entities.
Because of the situation, US bank JPMorgan Chase has recently purchased a new building in the heart of Paris capable of holding 450 people, following Brexit. Because of the Brexit, JP Morgan apparently wants to transfer 200 billion euros to Frankfurt. This would make JP Morgan the sixth-largest German bank. In addition to JP Morgan, Citigroup, UBS and Standard Chartered also want to strengthen their presence in the German financial metropolis.
JPMorgan now has about 10,000 people based in London and 260 employees in Paris, with the new building in the French capital creating capacity for an extra 450. It also has roughly 500 people in Frankfurt and 450 in Luxembourg. The number of employees in Germany is apparently to be greatly expanded
Bank of America, Goldman Sachs, Nomura, Banco do Brasil and Barclays have also relocated in Paris.
The move "will give the bank the opportunity to pursue growth in France, in line with its strategy to continue to serve its European clients seamlessly from the continent's major cities, including Frankfurt, Luxembourg and Dublin."
According to the German Bundesbank financial institutions have already moved business worth 675 billion EUR from the UK to Germany by the end of 2020. Accordingly 60 new banking licences were issued for banks relocating to Germany. What is more it is foreseen that that the relocated volume of business will rise to a total of 1.2 trillion EUR by the end of 2022. Another example portraying the companies' escape to the European Union is the Luno Fashion Limited which relocated from London to Dusseldorf, Germany.
The transfer of companies would increase the pressure on the Cities welcoming such entities and will have to plan ahead to provide adequate housing opportunities, regarding the relocation of staff and their families. When, for example, the European Centre for Medium-Range Weather Forecast had to establish a new EU location outside of the UK. Germany was able to attract with a "full-service" concept offering a completely new campus to the Centre for Medium-Range Weather Forecast that also included the infrastructural connectivity and attractiveness for the employees and their families. This looks like it will change in time as many workers have realised that they can work further afield. It is a demand-side trend that Instant has seen across many markets during 2020 and it points to a real opportunity for those operators that feel their model can be replicated in new, alternative locations.
- Movement of Goods
The Trade and Co-Operative Agreement (TCA) has allowed for zero tariff and zero quota trade in goods between the UK and the EU and applies to any goods that are perceived to have a substantial origin connection to either the UK or the EU. The agreement covers (i) a Free Trade Agreement, covering the EU-UK cooperation on economic, social, environmental and fisheries matters (ii) a close partnership on citizens’ security and (iii) an overarching governance framework which includes various oversight bodies and the disputes requirements as well as an arbitration tribunal.
On the UK side, the UK Parliament already passed the European Union (Future Relationship) Act 2020, which gave effect to the TCA’s provisions into domestic law on 31 December 2020. On the EU side, the Council, acting on behalf of all 27 EU Member States, adopted the decision which allowed the signature of the TCA and its provisional application from 1 January 2021. On 27 April 2021, the European Parliament has voted to ratify the EU's post-Brexit trade deal with Britain. The TCA has therefore entered into force permanently on 01 May 2021.
However, customs declarations will still need to be executed when importing or exporting goods. A consequent knock on effect of this has been that the combined risk of potential delay and need to spilt e-commerce stock between the EU and the UK has resulted in an increased demand for logistics space on both sides of the channel.
In the long term supply chains are likely to adjust in response to the delays, as they will inevitably decrease with familiarity and investment in the new systems. However, in the short term, businesses should consider strategies to mitigate against logistical risks to their supply chains, such as substitution of goods and suppliers.
Also, as Northern Ireland is still in the EU Single Market, the rules for importing and exporting goods apply to those passing between Great Britain (England, Scotland and Wales) and Northern Ireland. This also has implications for the recognition of standards now that the UK has left the EU. Products within the EU market will continue to carry the CE quality mark, whereas goods for the UK market will have to carry the UKCA (UK Conformity Assessment) mark. And, in Northern Ireland, they may be a need for goods to carry both the CE and new UKNI quality marks.
Although the actions undertaken as part of the Northern Ireland protocol are clearly complicated to navigate, if a navigable longer-term framework is agreed then Northern Ireland could potentially benefit from being simultaneously part of the UK and the EU. This potential 'best of both worlds' situation would allow for Northern Ireland to benefit from trading within the EU, whilst also benefitting economically from being part of the UK.
- Potential Labour Shortages
The real estate and construction industries previously benefited from the free movement of employees from other EU member states and their expertise. Brexit may impact the UK negatively as it could cause a shortage of skills, as well as inflation in costs. This in turn could affect the delivery of projects, and in particular budgeted costs and timeline. These sectoral shortages could result in higher costs for some occupiers and developers that are reliant on EU based construction workers. Currently London has the highest percentage of EU workers and so it is the most exposed region to this potential skill shortage.
EU workers that resided in the UK before the end of the transition period were able to apply for settled of –re-settled status which allows them to work and live in the UK. However, EU workers who are not resident in the UK must now apply for visas and work permits under a points-based immigration system. Obtaining visas can be lengthy and costly and delay construction projects. A similar system has been put in place for businesses sending UK personnel to work in the EU. In France, UK nationals and their family members who were already on the French territory before 01 January 2021, will need to apply for a residence permit marked "UK Withdrawal Agreement from the EU" by 01 July 2021. This can be done online. However, UK nationals who settle in France as from 01 January 2021 will be subject to the general procedure for third country citizens and will have to apply for a residence permit directly from the Prefecture.
In Germany, UK nationals who have lived and/or worked in Germany before 01 January 2021 will have their rights mostly unchanged compared to the situation before Brexit. For that they must notify their (continued) residence to the foreigner's authority responsible for their place of residence until 30 June 2021 in order to then be able to obtain the new residence document. For UK citizens living and/or working in Germany as of 01 January 2021 the general law aliens for third-country nationals will apply. Having said that, they may enter Germany for less than 90 days without a visa but need a permit in order to establish a residence in Germany and/or to commence an employment.
- Cross-Border Transfer of Company Seats
With Brexit, UK companies are considered as third country companies. In addition to no longer benefiting from the European Single Market, they can no longer take advantage of the right of establishment developed by the CJEU, under which branches of a company incorporated in the UK, that are located in an EU Member State, are subject to UK rules irrespective of the location of its business (application of the incorporation theory).
Therefore, Member States that apply the real seat theory, according to which the legal regime of a company depends on the jurisdiction where the company has its administrative headquarter , are free to impose their national law on companies registered in Great Britain or Northern Ireland but whose effective management or principal place of business is located in their territory through their branches. For UK companies with their administrative headquarters in Germany, German (company) law is now generally applicable. A UK limited company with its administrative headquarters in Germany now runs the risk of no longer being recognized as such in Germany. The company would have to be assessed according to German company law, but does not meet the formation requirements of a German corporation. Instead, it would be regarded as a partnership in Germany, which means that it would lose its limitation of liability in Germany. For companies with their administrative headquarters in the UK, Brexit will have no effect in this respect.
The insurance giant Chubb has already transferred its seat to France. Some British companies are looking to relocate their seat to EU Member States, which raises further questions. Indeed, companies incorporated in the UK can no longer claim the application of the right of establishment by virtue of which they could have relied on the retention of legal personality in the host Member State.
In addition, each EU Member States provides for legal criteria regarding the access for UK companies to incorporate in the EU market and this may vary between member states. Although it is unlikely that the UK and EU Member States will reciprocally decide to restrain such seat transfers.
It has to be noted that under French law, in the absence of a bilateral agreement, the transfer of the seat of a company incorporated in France to a non-EU Member State results in a change of nationality and implies the dissolution and liquidation of the company.
Therefore, in the event of a transfer of the registered office of a company incorporated in the UK to a Member State, it will henceforth be necessary to consider, on a case-by-case basis, the rules laid down by both its country of incorporation and its host country, bearing in mind that countries applying the theory of the real registered office (such as Germany or Belgium) may refuse the recognition of the legal form of the company.
- Focus on the Insurance Activities Affected by Brexit
Because of Brexit, UK insurance companies and their intermediaries would lost their "European passport" meaning that they would no longer be able to offer new contracts to EU customers, either through the provisions of the freedom to provide services or through branches. Yet, indirect access to the European market remains available by means of subsidiarising located in the EU for major groups.
The fate of contracts still in the portfolios of UK companies on the date of Brexit, and of the ancillary services, has not been regulated either by the Brexit agreement or by EU law. The French Order n° 2020-1595 dated 16 December 2020 creating a new article L. 310-2-3 in the French Insurance Code, provides for the progressive extinguishing of contracts, but does not however resolve all the difficulties. The principle is that these contracts remain in force as they were on 31 December 2020. On the other hand, UK insurers can no longer accept new insurance commitments in France, if they entail new premiums. This situation is similar in Germany. Insurance companies from other European Union member states are able to offer their services in Germany without having to go through the normal admission procedure but only having to undergo the considerably shorter notification procedure. With the UK becoming a third-country this single-license-principle will not apply anymore. Hence, UK insurance companies cannot enter into new or extend existing insurance contracts in Germany without issuing further license procedures that require a subsidiary or branch office in Germany. The existing contracts will however retain their validity under civil law. In light of this new situation the UK insurance company Standard Life Assurance Limited has transferred its German and Austrian insurance contracts to Standard Life International DAC in Dublin in 2019.
Dr. Staffan Wegdell